JUDGMENT
J.C.S. Rawat, J.
1. This Government Appeal has been filed against the judgment and order dated 31-7-1989 passed by Shri K. N. Upadhyaya, the then IInd Additional Sessions Judge, Nainital in S.T. No. 152/ 1980, State v. Sohan Singh & others acquitting the respondents-accused under Sections 302 r/w 34 I. P.C. and Section 326 r/w 34 I. P.C.
2. The facts, in nutshell, are that on 6-6 1980 at about 6 a.m. the complainant Nirmal Singh PW 3 and his father Subba Singh were ploughing the fields. The accused persons i.e. Sohan Singh, Arjun Singh and Pyara Singh armed with ‘lathi’, ‘bhala’ and ‘gadasa’ respectively came there. Sohan Singh asked Subba Singh as to why he had broken down the Mead (mud boundary) of their fields and his ox had eaten the sugarcane from the field of the accused persons. On this, the deceased Subba Singh replied him that as to why he was fighting with him, and it generally happened at the time of ploughing. Subba Singh further replied him that he had no intention to break down the mud boundary. But, the accused persons did not agree with him and they assaulted the father of the complainant by ‘lathi’, ‘bhala’ and gadasa’. Consequently thereupon, the father of the complainant sustained grievous injuries on his person. It was further alleged that the accused persons would also have received some injuries on their person at the time of incident when Subba Singh tried to defend himself by a ‘lathi’ which was available with him. The mother of the complainant i.e. Smt. Kartar Kaur PW 4 and his sister also came at the spot at the time of incident. When Smt. Kartar Kaur PW 4 tried to rescue her husband, the respondents accused assaulted her also. Thereafter, the accused persons respondents fled away from the scene of occurrence. Thereafter, the injured Subba Singh was taken to the police station on a bullock-cart by his son Nirmal Singh PW 3 and wife Smt. Kartar Kaur PW.4. When they reached near the gate of police station the injured was found dead. A report of the incident was lodged on the same day i.e. 6-6-1980 at about 7:50 am. The police prepared the inquest report Ex. Ka. 6 of the dead body of the deceased and also prepared photo lash Ex. Ka. 13. The dead body of the deceased was sent for postmortem.
3. The investigation was taken up which culminated into the submission of the chargesheet. After submission of chargesheet the respondents-accused were committed to the Court of Sessions for trial and the trial Court framed charges against the respondents accused. The respondents-accused denied charge levelled against them and claimed the trial.
4. The prosecution in support of its case examined as many as six witnesses. Rebhadhar Sharma PW1 was the Head Constable posted at police station Sitarganj at the time of incident. He proved the Tehri report and G. D. entry. Dr. Ram Swaroop PW2 was the medical officer, who medically examined Smt. Kartar Kaur PW4.
5. The prosecution has also examined Nirmal Singh PW3, who was the son of the deceased Subba Singh. Nirmal Singh PW 3 is the informant and eye-witness of the incident. Smt. Kartar Kaur PW4 is the wife of the deceased. She was also eye-witness of the incident. Dr. P. H. Gupta PW 5 is the medical officer. He conducted the post mortem of the deceased on 6-6-1980 at 4 p.m. and found the following antemortem injuries on the person of the deceased:
(i) Incised wound 6cms x 1/2cm bone deep over right & back part of head.
(ii) L. W. (lacerated wound) 4cm x 3/4cm bone deep over left back part of head above left ear.
(iii) Abraded contusion 2cm x 2cm over the left side of face just outer left eye.
(iv) Multiple abraded contusions in an area of 1lcm x 8cm over the back of lower part of right arm entering on to the right elbow.
(v) Multiple abraded contusion in an area of 10 cms x 6 cms over the back of right hand extending on to the wrist.
(vi) Multiple contusion in an area of 8cm x 4cm over outer back and upper part of arm.
(vii) Multiple abraded contusion 14cms x l0cms over the outer, back and middle lower part of left area.
(viii) I. W. (incised wound) lcm x 1/4 cm bone deep tapering upwards over the outer aspect of left elbow.
(ix) Abraded contusion 6cm x 4cm over the front and outer aspect of left elbow.
(x) Contusion 6cm x 4cm over the back of left wrist.
(xi) Contusion 4cms x 2cms over the left side chest just left to nipple.
(xii) Contusion l0cms x 2cms over the left side of abdomen and 12 cm away from umbilicus.
(xiii) Multiple abraded contusion in an area of 18 cms x 10 cm over the right upper past of back extending on to the back of shoulder.
(xiv) Multiple abraded contusion in an area of 29cm x 26cm over the back just below the lower angles of scapulae.
(xv) Multiple contusion in an area of 13cms x 13cms over the right hip.
(xvi) Multiple contusion in an area of 18cms x 14cms over the back of left hip.
(xvii) Multiple abraded contusion in an area of 10cm x 6cm over the outer part of right knee.
(xviii) L. W. 8cm x 2cm bone deep over front & middle part of right leg.
(xix) L. W. lcm x 1/2cm bone deep with fracture of fibula over the outer aspect of right ankle.
(xx) Two L. W. each measuring lcm x 1/4cm bone deep with fracture of fibula bone over the outer aspect of left ankle.
(xxi) Facture of 5th, 6th, & 7th left ribs found on opening as mentioned over leaf.
In the opinion of the Medical Officer, the death of the deceased was caused due to shock and haemorrhage resulting from an-temortem injuries sustained by him. The Medical Officer also proved the postmortem report Ex. Ka. 7.
6. The prosecution has also adduced the evidence of Vikram Singh Bisht (PW6). He was the Investigating Officer of this case. He proved the inquest report of the deceased, challan lash, photo lash & site plan etc.
7. The respondents-accused were examined Under Section 313 Cr. P, C. and they had pleaded not guilty of the offence. The respondents accused further stated that they have been falsely implicated in this case to save themselves.
8. The learned trial Court on his appreciation of the evidence in the case held the respondents not guilty and acquitted them. It was observed by the trial Court that the medical officer had stated in his evidence that at the time of medical examination of Smt. Kartar Kaur PW4 an old injury was found on her teeth and she was not able to open her mouth at the time of medical examination. If the injury was found inside her mouth it was possible to receive /sustain injury on her face also. But, Smt. Kartar Kaur PW4 had not sustained any injury on her face. The prosecution has not explained the injuries on the person of the accused/ respondents. The medical officer had stated in his evidence that there was no injury of pointed weapon on the body of the deceased. In view of this, the trial Court had held that the prosecution story is not believable. It was further observed that Nirmal Singh PW 3 had stated in his evidence that when he and his father were working in the field the accused persons came there and started beating his father. On hearing the cry, his mother and sister also came at the spot. But, the PW3 did not say anything as to whether he was assaulted by the accused or not. On the basis of this statement of PW3, the trial Court was of the view that the evidence of PW3 cannot be relied upon. It was further observed that the FIR is ante-timed. It was further held that the medical officer has stated in his evidence that the injuries sustained by the deceased were not grievous in nature. It was mentioned in the report that the ‘bhala’ was used by the accused respondent at the time of assault. Thus, the trial Court was of the view that if there was no injury of ‘bhala’ on the person of the deceased, the medical evidence cannot be relied upon. The trial Court has discarded the evidence of PW3 & PW4 on the ground that even PW3 and PW4 could not state the exact place of incident. It was further observed that the incident took place in the morning, but no independent witnesses were examined by the prosecution. In view of the above, the trial Court was of the view that the prosecution has not proved its case beyond reasonable doubt. In this way, the trial Court acquitted the respondents accused.
9. We have heard learned Counsel for the parties and perused the record carefully.
10. Learned AGA for the appellant State contended that the FIR was lodged immediately after the incident. The evidence of eye witnesses has not been shaken during the cross examination. It was further contended that the trial Court has erred in holding that the presence of Nirmal Singh PW3 and Smt. Kartar Kaur PW4 was doubtful. It was further contended that Nirmal Singh PW3 was ploughing the field with his father Subba Singh (deceased) in the morning and his mother Smt. Kartar Kaur PW4 reached at the place of occurrence on hearing the cry of her husband while the respondents accused were assaulting Subba Singh. It is indubitable that there are eye witnesses of the incident i.e. Nirmal Singh PW3 and Smt. Kartar Kaur PW.4 Smt. Kartar Kaur PW4 is an injured witness, who gives credence to the prosecution story that she was present at the spot at the time of incident. Learned A. G. A. for the appellant further contended that the prosecution has proved its case beyond reasonable doubt against the respondents-accused. It was further contended that the trial Court had held that the place and time of the incident was admitted to the respondents accused in the cross case. The trial Court had to see as to who was the aggressor. The trial Court has further held that it was not the case of free fight. The trial Court has erred in not giving any finding as to who was the aggressor in this case. It was further contended that the findings recorded by the trial Court were against the record and evidence. As such, the findings are perverse.
11. Learned Counsel for the respondents-accused submitted that the trial Court has rightly acquitted the respondents accused. It was further contended that the view taken by the trial Court was a possible view even though the occurrence was admitted by the respondents-accused, High Court should not interfere in the judgment of acquittal rendered by the trial Court. The High Court after scanning the entire evidence cannot hold that the judgment of the trial Court was illegal when it was a reasonable and possible view taken by the trial Court. It was further contended that there was no material for the genuineness of the dispute; there was no motive as was held by the trial Court; the FIR was rightly held to be ante-timed and the place of occurrence was not established by the prosecution during the evidence.
12. Before dealing the submissions of the parties, we would like to discuss the legal position. It is well settled principle of law that there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal should not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and irrelevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.
13. It needs to be mentioned here that it is not disputed that the deceased met a homicidal death on account of injuries sustained by him on the date of occurrence. The post mortem report of the deceased Ex. Ka. 7 shows that the death of the deceased was caused due to shock and haemorrhage resulting from ante-mortem injuries sustained by the deceased. The Medical Officer has proved the post mortem report Ex. Ka. 7. Dr. P. H. Gupta PW5 who conducted the postmortem has opined that the death of the deceased occurred due to the shock and haemorrhage from ante-mortem injuries. Perusal of the inquest report Ex. Ka. 6 reveals that the death of the deceased occurred due to injuries sustained by him at the time of incident. Thus, it is amply established that the deceased met a homicidal death on account of injuries sustained by him.
14. Now, we have to consider whether the respondents-accused were responsible for the injuries sustained by the deceased or not. The prosecution had adduced the eye- accounts evidence of Nirmal Singh PW3 and Srnt. Kartar Kaur PW4, who are the son and wife of the deceased respectively. Both (he witnesses have narrated the entire incident. They have stated in their evidence that on 6-6-1980 at about 6 a.m. when Nirmal Singh PW3 and the husband of deceased (Subba Singh) were ploughing the field, all of a sudden the respondents-Sohan Singh, Pyare Singh and Arjun Singh came there. Sohan Singh was having a ‘lathi’ in his hand. Arjun Singh and Pyare Singh were having ‘bhala’ and ‘gadasa’ respectively in their hands. The accused persons asked the deceased as to why he had broken the Mead (mud boundary) of their fields and why he had allowed his ox to eat the sugarcane of the respondents accused. The deceased replied him that it was unintentional but accused persons immediately assaulted the deceased with the arms which they were having in their hands. On hearing the cry of Subba Singh, Smt. Kartar Kaur PW4 and her daughter reached at the spot. When Smt. Kartar Kaur PW4 tried to rescue her husband she was also beaten by the accused person, due to which she sustained grievous injuries on her person. Subba Singh sustained the injuries and fell down on the field itself. Thereafter, a bullock cart was called from the house of the witnesses and the injured Subba Singh was taken to the police station. When they reached near the gate of the police station the injured was found dead by the witnesses. The prosecution has also adduced the evidence of Rebhadhar Sharma PW1, who was a formal witness in this case. He was the Head Constable at police station Sitarganj at the time of incident. He proved the tehrir report and the G. D. entry. Dr. Ram Swaroop PW2 was the medical officer, who examined the injuries of Smt. Kartar Kaur.
15. Learned A. G. A. for the appellant contended that the trial Court has erred in-holding that the FIR was ante-timed. It was further contended that the prompt FIR was lodged and the FIR contains the details i.e. who had committed the crime, the parts played by them and the weapon used by the accused. It was further contended that the trial Court has further erred in holding that Nirmal Singh PW 3 was also the witness of panchayatnama and he had not stated at the time of preparing it that these injuries were caused with lathi, bhala and gadasa, whereas this fact has been indicated in the FIR. The trial Court has held that the FIR was ante-timed. Perusal of the record reveals that the FIR was recorded at about 7.50 a.m. on 6-6-1980 in the police station. The panchayatnama was prepared thereafter. Perusal of the panchayatnama Ex. Ka. 6 reveals that the panchayatnama was prepared in pursuance of the report submitted to the police on 6-6-1980 at about 7.50 a.m. and it also contains the crime No. 188 under Section 302, 323, & 324 IPC police station Sitarganj. Thus, these facts clearly reveal that when the panchayatnama was prepared the FIR had already come into existence and the case had already been registered as crime No. 188 in the police Station. Perusal of the record reveals that the respondents accused had also filed the copy of the G. D. Ex. Kha.2 by which a cross case of the respondents had been registered against Subba Singh, Nirmal Singh etc. This G. D. report shows that the respondents had submitted their report at 9.30 a.m. in the police station. The police made an endorsement in the said G. D. that Nirmal Singh has already lodged a report against the respondents-accused under Sections 302, 323, & 324 IPC as case crime No. 188 and the case of the respondents was registered as a cross case crime No. 188A. This fact also reveals that the FIR had come into existence before 9.30 a.m. It cannot be held by any evidence on record that the said report had not come into existence prior to the inquest report. This fact on record leaves no room for doubt that the FIR was lodged prior to the preparation of panchayatnama. It is not necessary to mention all the facts in the panchyatnama. It is not required that it should be recorded that the injuries have been caused by lathi, bhalla and gadasa. It is well settled law that the details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174 Cr. P.C. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details. Reliance placed in Pedda Narayana v. State of A. P. ; Shakila Khader v. Nausheer Cama ; Eqbal Baig v. State of A. P. ; Khujji v. State of M. P. ; Amar Singh v. Balwinder Singh ; Meharaj Singh v. State of U.P. 1994 SCC (Cri) 1391 : 1995 Cri LJ 457 and Radha Mohan Singh v. State of U. P. . In the case in hand, the trial Court on the one hand has held that there was a prompt FIR in this case and on the other hand the trial Court has given a self contradictory finding that the FIR is ante-timed. Thus, we are not in agreement with the findings recorded by the trial Court. There can be no other conclusion in this matter except that the FIR was recorded well in time.
16. Learned Counsel for the respondents-accused contended that there was a delay in lodging the FIR. Learned A. G. A. for the appellant contended that there was a prompt FIR and the prompt FIR also inspires confidence that the version recorded therein was a natural and correct version. The FIR was lodged at about 7.50 a.m. and the incident took place at about 6 a.m., whereas the distance between the police station and the place of incident is only about 3kms. It was further contended on behalf of the respondents accused that the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Perusal of the record reveals that the witnesses had stated in their evidence that immediately after the incident they took 1 hour to carry the injured to the police sta-i tion from the place of incident. The above inference is lent credence to the fact that Nirmal Singh PW3 who was present at the scene of the occurrence promptly reported the matter to the police station at 7.50 a. m. on the date of incident i.e. 6-6-1980, The prompt FIR thus inspires confidence that it was not the outcome of due consultation or deliberation. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used,; as also the names of the eye witnesses, if any. Therefore, we do not find any substance in the contention advanced on behalf of respondents-accused.
17. Learned A. G. A. for the appellant contended that the trial Court has erred in ignoring the eye account of incident. Nirmal Singh PW3 and Smt. Kartar Kaur PW4 were present at the spot at the time of incident. They were the eye witnesses of the incident. The witnesses adduced before the trial Court have sufficiently proved that the respondents-accused assaulted the deceased, due to which the deceased sustained grievous multiple injuries and succumbed to his injuries. Learned Counsel for the respondents refuted the contention. Learned Counsel for the respondents-accused assailed the testimony of Smt. Kartar Kaur PW4 on the ground that the injuries found on her person were old. The trial Court has observed in the impugned judgment which is as follows:
(Vernacular matter omitted….Ed.)
18. Perusal of the record reveals that the presence of the injured witness Smt. Kartar Kaur at the spot cannot be doubted. Smt. Kartar Kaur PW4 had also sustained the injuries including grievous injury at the time of incident and the prosecution has proved the same. Smt. Kartar Kaur PW4 was medically examined by Dr. Ram Swaroop PW2 on 6-6-1980 at about 10.30 a.m. Dr. Ram Swaroop PW2 who had proved the medical report of PW4 (Ex. Ka. 4) and found, the following injuries on the person of Suit. Kartar Kaur PW 5:
(i) Loose upper left outer incisor tooth. The gum margins lacerated. Slight oozing of blood from the socket of the injured tooth present. Tartar present. Pyorrhea absent. The patient is unable to open her mouth due to some very old injury to the jaw. Hence, the total No. of teeth cannot be counted with precision.
(ii) A contused swelling 5.5 cm. x 2 cm. across the outer border of middle third of the left forearm. Pinkish in colour. Painful and tender.
The doctor has opined that all injuries found on the person of Smt. Kartar Kaur PW4 were fresh. Injury No. 1 was kept under observation and injury No. 2 was simple. It was opined that all injuries were caused by blunt object. Injuries could be caused at about 6a.m. on 6-6-1980. The incisor tooth has come out due to the patient’s constant touching by the tongue. In the cross examination, the doctor has stated that Smt. Kartar Kaur PW4 was not able to open her mouth completely due to some old injury. The relevant statement of Dr. Ram Swaroop PW2 is quoted below:
(Vernacular matter omitted….Ed.)
19. The trial Court misread the evidence and the findings recorded by the trial Court are not consistent with the evidence on record. The injured witness stands on a higher pedestal than ordinary eye witnesses. It is also well settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. The presence of the injured witness cannot be discarded lightly. There is no doubt about the presence of the injured witness Smt. Kartar Kaur PW4. Therefore, the trial Court has erred in ignoring the evidence of the injured witness.
20. It is further contended on behalf of the respondent accused that Smt. Kartar Kaur PW4 was medically examined by inordinate delay. Learned AGA for the appellant refuted the contention and contended that Smt. Kartar Kaur PW4 was medically examined on the date of incident at about 10.30 a.m. The incident occurred at about 6 a.m. and after the incident Smt. Kartar Kaur PW4 and her son Nirmal Singh PW3 took the deceased to the police station, where the report was lodged at about 7.50 a.m. It was the natural conduct of Smt. Kartar Kaur PW4 that she preferred to accompany her husband to the police station when he was in a critical condition. When the husband of Kartar Kaur PW4 was in a critical condition she would first see her husband and she would forget her injuries. Nirmal Singh PW-3 the son of the deceased and his sister were the only persons present in the house. Nirmal Singh PW3 also preferred to take his father first to the police station because his condition was more serious than his mother. Thus in this condition, it cannot be held that the medical examination of PW4 was conducted by inordinate delay. In these circumstances, we are of the view that the trial Court had wrongly disbelieved the evidences of Kartar Kaur PW4.
21. It is further contended on behalf of the respondents-accused that eye-witnesses i.e. Nirmal Singh P.W. 3 and Smt. Kartar Kaur P.W. 4 had categorically stated that the daughter of the deceased also came at the spot at the time of incident and she was said to be the eye-witness of the incident. It is also contended that non-examination of that witness is fatal to the prosecution story and as such the trial Court has rightly acquitted the respondents-accused. The learned Counsel for the appellant (State) refuted the contention. The trial Court has held that the incident took place at about 6 a.m. on 6-6-1980. The houses and the fields belonging to the villagers residing in the same village are situated nearby the place of occurrence. There is no mention of any other independent witnesses in the FIR though it cannot be believed that even the houses and the fields are situated nearby the place of incident and nobody would come forward to see the incident. The trial Court further held that non-examination of independent witnesses also leads to take an inference that the prosecution has not come forward with a correct Version before the Court. It was further held by the trial Court that the prosecution was obliged to collect the independent witnesses and to adduce them to corroborate the evidence of Nirmal Singh P.W. 3 and Smt. Kartar Kaur P.W. 4. Perusal of the record reveals that Nirmal Singh P.W. 3 and Smt. Kartar Kaur P.W. 4 had categorically stated in their depositions that there was no other person who came at the spot and had seen the occurrence. The evidence of the eye-witnesses has not been shaken during the cross-examination. Thus, it cannot be held that there was other persons present at the spot to see the incident. It has been categorically mentioned in the FIR that there were no other person present at the spot at the time of incident. In view of such circumstances, the prosecution cannot be compelled to adduce the independent witnesses where the witnesses are not available. The evidence of the prosecution that. no other wimeos, except the eye-witness which has been produced before the Court held seen the incident is credible and cogent. The finding recorded by the trial Court that the prosecution had not adduced the evidence of independent witness is against the record. It is quite clear from perusal of the record that the daughter of the deceased was also present at the time of incident. It is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the evidence adduced by witnesses. It is the quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be ascribed to be trustworthy and increase in the number of witnesses cannot be termed to be a requirement for the case. If the prosecution establishes the guilt of the respondents-accused beyond reasonable doubt, i here is no need to produce the other witness in the case. The witnesses if they are participating in that event their evidence cannot be thrown outright on the ground that the other witness has not been produced. If the witnesses are trustworthy then it is not required that there should be a multiplicity of evidence. Thus, we are of the view that non-examination of the daughter of the deceased is not fatal to the prosecution story and as such the trial Court has crred in acquitting the respondents. We are fortified with the view taken by the Hon’ble Supreme Court in Kornal v. Sate of U.P. , para 10 as under:
Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were being assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of P.Ws. 2 and 4, the two injured eye-witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborated by the informant P.W. 5 and supported by medical evidence as well as objective finding to the Investigating Officer.
22. It has been further held in Babu Ram v. State of U.P. 2002 SCC (Cri) 1400 : 2002 Cri LJ 3745 as under:
It was submitted by the learned Counsel for the appellants that Ram Autar, an independent eye-witness present at the scene of occurrence according to the prosecution case and a Government servant has not been examined, and therefore, an adverse inference should be drawn against the prosecution. It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye-witness examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. In the case at hand we additionally find from the testimony of Ashrafi Lal that in spite of being a Government servant and not involved in local village disputes he is afraid of deposing against the accused persons and there is substance in the submission of the learned Counsel for the State that Ram Autar if tendered in the witnesses-box would have followed the same track as was chosen by Ashrafi Lal P.W. 3.
In view of the aforesaid discussion, the contention of the learned A.G.A. for the appellant has force.
23. Learned Counsel for the respondents-accused contended that the trial Court has rightly discarded the evidence of prosecution. It was further contended that the eyewitnesses i.e. Nirmal Singh P.W. 3 and Smt. Kartar Kaur P.W. 4 are interested witnesses. Both eye-witnesses are not trustworthy as they are related to the deceased. The prosecution should have adduced the evidence of public witnesses who were also present at the time of incident. On due consideration of the submissions of the learned Counsel for the parties, we are of the view that although, it is true that the witnesses i.e. P.W. 3 and P.W. 4 are related to the deceased but their evidence cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. they are related to each other. It should be kept in mind while appreciating the evidence that the interested persons definitely give their evidence in order to convict the wrong doers. Nirmal Singh P. W. 3 and Smt. Kartar Kaur P.W. 4 must be interested to give their evidence so as to convict the respondents-accused for their wrong doings and they would not like to adopt a course by which some innocent persons would be convicted in place of the persons really guilty of the murder of the deceased. In such circumstances, it would not be just and proper to discard their evidence on account of their relationship with the deceased. It has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. So, the witnesses avoid to come to the Court. The evidence of prosecution witnesses is consistent and nothing had been elicited from their cross-examination which could lead an inference that evidence is unreliable. The evidence of the prosecution witnesses is credible and cogent. In view of the above discussions, we find no force in the contentions advanced by the learned Counsel for the respondents-accused.
24. Learned A.G.A. for the appellant contended that the trial Court has erred in ignoring the evidence of Nirmal Singh P.W. 3, who was also an eye-witness of the incident. It is further contended that the trial Court has erred in discarding the evidence on the basis of minor omissions, contradictions or insignificant discrepancies in the evidence of the prosecution witnesses. Learned Counsel for the respondents-accused refuted the contention and contended that Nirmal Singh P.W. 3 had stated in his evidence that he was present at the time of incident. Nirmal Singh P.W. 3 did not come forward to rescue his father and he remained silent at the time of incident. It is further contended that the conduct of Nirmal Singh P.W. 3 is unnatural. If he was present at the time of incident, it was his natural conduct to rescue his father. It was further contended that the conduct of P.W. 3 leads to take an inference that he was not present at the time of incident. So far as the minor contradictions and discrepancies are concerned, it is the settled position of law that some discrepancies are bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. The normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected from the normal person. The normal discrepancies do not corrode the credibility of a party’s case. On due consideration of the submissions of the learned Counsel for the parties, we are of the view that as the person who has witnessed an incident, like the present one reacts in his own way. Some are stunned, some become speechless and some stand uprooted from the spot. Thus, every individual reacts on his own way. There is no set of rules of natural conduct. The respondents-accused were armed with deadly weapons and it is natural that he could not come forward to save his father, particularly when they were causing murderous assault upon the deceased. Only on the ground that he remained silent and he did not participate in the incident cannot lead us to take an inference that Nirmal Singh P.W. 3 was not present at the spot.
25. Learned A.G.A. for the appellant further contended that the trial Court has erred in discarding the evidence of Nirmal Singh P.W. 3 on the ground that he could not tell the details as to how many injuries were caused to his father (deceased) at the time of incident. Learned Counsel for the respondents-accused refuted the contention and contended that the trial Court was correct in observing that the eye-witness could not tell accurately how many injuries were caused to the deceased. On due consideration of the submissions of the learned Counsel for the parties and the statements of the witnesses, we are of the view that it is not possible for a witness to count the assaults on the person of the deceased particularly when he is given blows by more than one person. The assaults were made in quick succession and the manner and method of assault, the position of the victim, the resistance offered by the deceased, the opportunity to see the incident like their distance, the horror and terror caused to witness are relevant factors to be taken into consideration in judging the testimony of the eyewitness. It cannot be held that there is a straight-jacket formula if the witness could not tell accurately how many injuries were caused to the deceased by the individual accused and further which of the injury was caused on the person of the deceased on which part. Nirmal Singh P.W. 3 would have been under horror and terror of the accused and Kartar Kaur P.W. 4 had the primary-thing to save her husband and not to count the injuries which was being caused by the accused in quick succession. We are afraid that mathematics does not strictly work in appreciation of such evidence. A witness who tried to save her husband-deceased and herself was given a blow, is not expected to count the number of blows by different persons by different weapons or the numbers of blows given so that the Court could correlate them mathematically to the postmortem report. To expect this exactitude from the evidence of such witness, is asking for impossible.
26. While appreciating the evidence, the Court has to see a number of facts. The first and foremost fact which is to be considered is that when the incident occurred and when the evidence was recorded before the Court. In the instant case, the incident occurred on 6-6-1980 and the evidence of P.W. 3 was recorded on 27-10-1987, 28-10-1987 and 3-11-1987 whereas the evidence of P.W. 4 was recorded on 3-11-1987. The evidence was recorded after a period of seven years from the date of incident. Thus, the discrepancies are bound to occur in the truthful version of the witnesses when they are rustic or illiterate. G.D. report Ex. Kha.2 filed by the respondent-accused further reveals that a report was lodged in the police station as cross case in which the time and date of the incident is same and the respondents-accused had lodged the report under Sections 323, 147, I.P.C. against the Subba Singh deceased, Nirmal Singh and others. It was registered as cross case. If the respondents-accused had admitted the presence of Subba Singh and Nirmal Singh at the spot in the cross case, it cannot be held that Nirmal Singh P.W. 3 was not present at the spot. The trial Court has erred in lightly washing off his evidence. He was consistent during I his cross-examination. |
27. The defence has filed the copy of the general diary Ex. Kha-2 by which it is revealed that a cross crime No. 188A was registered against Subba Singh, Nirmal Singh etc. – the complainant party under Sections 147 and 323, I.P.C. The prosecution has explained the injuries sustained by the accused persons in the same occurrence. The prosecution has also adduced the copy of the medical examination report of Arjun Singh and Sohan Singh, which are Exs. Ka. 19 and 20 respectively. Perusal of medical report of Arjun Singh and Sohan Singh i.e. Ex. Ka. 19 and Ex. Ka. 20 reveals that Arjun Singh and Sohan Singh were medically examined by the doctor on 6-6-1980 at 10:55 a.m. and 11 a.m. respectively. The doctor has found the following injuries on the person of Arjun Singh:
1. A contusion 5.5 cm. x 1.5 cm. across the outer surface of lower third of left forearm. Pinkish in colour. Painful and tender.
2. An incised wound 1.5 cm. x 0.3 cm. x 0.3 cm. outer forehead 4 cm. above to inner end of left eyebrow. Clotted blood and fresh oozing present. One end of wound is pointed while the other is not. The edges are slightly levelled from above downwards.
3. A contusion 8 cm. x 1.5 cm. x deep purple in colour and abraded at one end, out to middle of right shoulder blade painful and tender.
4. An abrasion shaped like English letter T with its left arm absent, over to middle of front of left forearm. Margins brown. Serum present.
All injuries are fresh. Nos. 1 and 3 caused by blunt object. No. 2 by some penetrating, pointed objects with one side sharp and No. 4 by teeth bite. All are simple.
The doctor has found the following injuries on the person of Sohan Singh:
1. An incised wound 3 cm. x 0.2 cm. x bone deep over the forehead 2 cm. above the inner end of left eye brow. Margins clean out. Tail end pointing upwards. Clotted and fresh blood present.
2. Pain over the left side of bridge of nose. Tender. Adv. x-ray.
3. Pain over the inner part of left shoulder. Area slightly swollen. Painful and tender.
All injuries are fresh. No. 3 are caused by blunt trauma and are simple. No. 1 is caused by sharp edged object and is under observation. No. 2 is also under observation till x-ray examination and is caused by blunt trauma.
28. The genuineness of these documents has been admitted by the respondents-accused. Apart this, the I.O. Vikram Singh Bisht P.W. 6 has stated in his cross-examination that a cross case was also filed by the respondents-accused and was also investigated by him. He investigated the matter.but no charge-sheet was filed by him. Learned Counsel for the parties at bar stated that the final report was submitted before the Court in that cross case. Thus, the injuries on the persons and the incident are admitted to the parties. The learned trial Court had also held that both parties sustained the injuries and there are cross versions of the incident. The trial Court further held that the time and incident is admitted to the parties. The trial Court has held that this is not a case of free-fight. The trial Court further observed that the Court had to see who was the aggressor in this case. It is pertinent to mention here that the trial Court did not consider this aspect in his judgment.
29. As to the motive of the crime the learned trial Court has completely ignored the totality of evidence before it and obsesrved that the motive for the crime was not satisfactorily proved. Learned A.G.A. for the State contended that the prosecution has fully established the motive to commit the crime. The prosecution has adduced the evidence of Nirmal Singh P.W. 3 who had stated in his deposition that he and his father Subba Singh were ploughing the fields. The accused persons i.e. Sohan Singh, Arjun Singh and Pyara Singh armed with ‘lathi,’ ‘bhala’ and ‘gadasa’ respectively came there. Sohan Singh asked Subba Singh as to why he had broken down the Mead (mud boundary) of their fields and his ox had eaten the sugarcane from the field of the accused persons. Subba Singh replied him that he had no intention to break down the mead. The respondents-accused being not satisfied with the reply of the deceased assaulted him. In these circumstances, the short shrift given to evidence on the issue of motive by the trial Court is perverse. It is also in the evidence of Nirmal Singh P.W. 3 that a marpeet took place 2-3 months ago from the date of incident in between the respondents-accused and the parents (father and mother of Nirmal Singh). Smt. Kartar Kaur P.W. 4 has also corroborated this fact. Both the witnesses have stated that they did not lodge any report of the incident of marpeet and the matter was compromised in the village panchayat. It is also pertinent to mention here that the respondents-accused, deceased and witnesses are related to each other. There is an evidence to the fact that the respondents-accused had asked the cause of breaking the ‘mead’ and grazing the sugarcane by the ox at the time of ploughing the field. The evidence of the prosecution is credible and cogent and the said evidence had not been shaken during the cross-examination. Thus, the trial Court had erred in holding that the prosecution has failed to prove the immediate motive of the crime. Assuming that there was no motive for the crime or mere fact that the prosecution has failed to prove any motive on the part of the accused to commit the crime. It is well settled principle of law that if the evidence of witnesses is reliable, satisfactory and convincing then the absence of motive becomes irrelevant for the decision of the case. It is also well settled that establishment of motive is not sine quo non for proving the prosecution case. It was held in Yunus v. State of M.P. 2003 (1) SCC 429 (sic).
The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case.
30. The trial Court has observed that the prosecution has not explained as to how the respondents-accused had sustained the injuries. The trial Court has further held that non-explanation of the injuries on the person of the respondents-accused also entitles them to be acquitted on that ground. Learned A.G.A. for the appellant contended that the finding recorded by the trial Court is against the record because the injuries have been explained in the FIR as well in the prosecution evidence. It is further contended that assuming the prosecution has not explained the injuries which was not obligatory on the part of the prosecution in each and every case where the prosecution fails to explain the injuries found on some of the accused the prosecution case should automatically be rejected any further proof. Learned A.G.A. for the appellant further contended that the evidence of eye-witnesses is credible and cogent and the prosecution had already explained the injuries sustained by the respondents-accused. The FIR was lodged promptly and the informant Nirmal, Singh P.W. 3 has indicated in the FIR itself that when the respondents-accused assaulted his father, Subba Singh, in his self-defence, took a lathi which was lying on the field and tried to save himself from the assaults. Nirmal Singh P.W. 3 had further corroborated this fact in his examination-in-chief. The witness was cross-examined at length on this point by the respondents-accused, but nothing could be elicited from the cross-examination. Smt. Kartar Kaur P.W. 4 had stated this fact in her examination. Learned Counsel pointed out that Smt. Kartar Kaur P.W. 4 had stated in her cross-examination that her husband also took a lathi in his defence by which the respondents-accused might have sustained injuries. She had further stated that if the I.O. had not recorded this version under Section 161, Cr. P.C. she could not state as to why this fact has not been recorded in her statement recorded under Section 161, Cr. P.C. This contradiction which has been brought to our notice by the learned Counsel for the respondents-accused is insignificant due to the reason that the FIR which was recorded promptly by Nirmal Singh contains the aforesaid fact. There was no chance to submit a coloured version before the police. The trial Court has completely lost sight of the fact that P.W. 3 and P.W. 4 were the rustic villagers. The learned trial Court has pointed out that Nirmal Singh P.W. 3 has stated that the deceased made his defence by a lathi which was lying on the field itself and Kartar Kaur P.W. 4 had stated that the deceased had tried to save himself by a “Santi” which is used to take the ox at the time of ploughing the field. ‘Santi’ is also like a lathi. Dimension of the lathi has not been asked by the defence. It cannot be said that there is contradiction in the evidence of the witnesses. Minor variance in the statement should not be given primacy. Non-indication of such fact Under Section 161 in the statement of wife of the deceased does not carry any weight to discard the entire evidence. It is obvious that the deceased died due to the assaults given by the respondents-accused on the same day when her statement was recorded and she also sustained the injuries. The evidence of the prosecution witnesses to the above fact is credible and cogent. The trial Court had completely ignored the evidence on record and come to a wrong conclusion without recording any reasons.
31. The trial Court has also observed that there was a contradiction with regard to the place of incident in the evidence of the eyewitnesses. Learned A.G.A. contended that the incident occurred in the field of Subba Singh where he was ploughing the field. The perusal of the record reveals that P.W. 4 was further cross-examined and she has stated as follows:
(Vernacular matter omitted….Ed.)
32. Learned Counsel for the respondents-accused further contended that P.W. 4 had stated in her deposition that she purchased the said field from Om Prakash and she was not aware as to whether any sale deed was executed in favour of her husband or not. It was further contended that it was obligatory on the part of the prosecution to produce the documents of the ownership of the said field. It is pertinent to mention here that in a criminal case the Court is appreciating the evidence on the point where the incident took place and not on the title of the parties in the criminal case. The evidence of the prosecution is credible and cogent to the extent that the deceased was ploughing the field which belongs to the deceased and he sustained the injuries at the spot. Thus, we do not find any force in the contentions of the learned Counsel for the respondents accused.
33. P.W. 3 was also cross-examined on the point of site of the incident. He had given minor details of the place of occurrence and he remained unshaken during the cross-examination. We could not find out any inconsistency or contradiction in their statements with regard to the place of incident. The evidence of P.W. 3 and P.W. 4 as indicated above are consistent and there are no variance or contradictions in their statements on the material point regarding the place of incident.
34. The trial Court has also pointed out that Nirmal Singh P.W. 3 has stated in his deposition that the respondents-accused were not present in the police station at the time of lodging the FIR. The trial Court further indicated in the judgment that P.W. 3 has stated that his mother reached at the police station. Kartar Kaur P.W. 4 has stated that when she was in the police station the respondents/accused were present in the police station. Learned Counsel for the respondents-accused contended that the discrepancy, which has been disclosed in the evidence, belies the prosecution story. P.W. 3 has stated in his deposition that the respondents-accused were not present in the police station at the time of lodging the FIR, but he had stated that he could not remember the time when the respondents-accused reached at the police station. The extract of the statement is reproduced below:
(Vernacular matter omitted….Ed.)
Perusal of the statement reveals that when he started lodging the report the respondents-accused were not present in the police station, he did not know as to when the accused persons came at the police station. Perusal of the above statement reveals that there is no contradiction in the statement of the witnesses. As we have pointed out earlier that some discrepancies are bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case.
35. The trial Court had also held that there was a cross case. The time and place of the incident is admitted to the parties. The Court had to see who is the aggressor in this case. But, it is strange that the trial Court has not discussed this aspect in its judgment. It is well settled that the plea of self-defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313, Cr. P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case. The ocular testimony of the witnesses proved the guilt of the accused beyond reasonable doubt. It is also admitted to the respondents-accused that they had lodged a report before the police under Sections 147, 323, I.P.C. against Nirmal Singh, Subba Singh etc. showing the incident of 6-6-1980 at about 6 a.m. It is also revealed from the statement of I.O. that a cross case was investigated by him. Learned Counsel for the respondents-accused submitted that a final report was submitted in the cross case. The prosecution has filed two medical reports Exs. Ka. 19 and 20. Perusal of medical report of Arjun Singh and Sohan Singh i.e. Ex. Ka. 19 and Ex. Ka. 20 reveals that Arjun Singh and Sohan Singh were medically examined by the doctor on 6-6-1980 at 10:55 a.m. and 11 a.m. respectively. The doctor had opined that the injuries shown in Exs. Ka. 19 and 20 were fresh. Ex. Ka. 19 shows that injury Nos. 1 and 3 of Arjun Singh were caused by a blunt object and injury No. 2 was caused by some penetrating pointed object with one side sharp and injury No. 4 was caused on account of teeth bite. Ex. Ka.20 shows that the injury No. 3 of Sohan Singh was caused by sharp edged object and injury No. 2 was caused by blunt object. The genuineness of these documents has been admitted by the respondents-accused. The respondents-accused has not taken a plea of self-defence during the trial and even no suggestion was put to any of the prosecution witnesses and there was no detailed plea of the respondents-accused in their statements recorded under Section 313, Cr. P.C. The respondents/accused had stated in their statements Under Section 313, Cr. P.C. that the complainant has filed a false case to save him from the case instituted against him. They have not stated the defence version in their statements. We do not find any probabilities and circumstances on record which leads to take us that the respondents-accused assaulted Subba Singh in their self-defence. The learned Counsel for the respondents stated that the final report was submitted in the cross case. The learned Counsel could not demonstrate us that the said final report was challenged before any Court. Thus, it has attained the finality. It leads an inference that such incident did not take place as alleged by the respondents-accused. Thus, we are of the considered view that the respondents-accused did not cause injuries to the deceased in their self-defence. In these circumstances, Subba Singh cannot be held to be the aggressor in this case. Subba Singh had received murderous injuries on his person.
36. The trial Court disbelieved the prosecution evidence on the ground that the prosecution has taken a specific case that the respondents-accused were armed with lathi, bhala and gadasa respectively. The injury report shows that the deceased sustained 21 injuries, out of which some are incised wounds, lacerated wounds and multiple abraded contusions. It was further observed that there was no punctured wound caused by spear on the person of the deceased. Learned A.G.A. for the appellant refuted the contention and contended that the prosecution has not suppressed the genesis of the dispute. The spear has a pointed tip on the top and rest of the part is just like a lathi. Perusal of the record reveals that Nirmal Singh P.W. 3 and Smt. Kartar Kaur P.W. 4 had stated in their depositions that the deceased was assaulted by the aforesaid weapons. It cannot be ruled out that the weapon might have caused injuries from the blunt side. Learned Counsel for the respondents-accused contended that the prosecution has suppressed the real version and it lacks the credibility. The witnesses have stated that the weapon of assault i.e. spear (bhala) was in the hands of one of the respondents-accused. There is no mention in the evidence as to which side of the weapon was used. The Hon’ble Apex Court in Chaudhari Ramjibhai Narasangbhai v. State of Gujarat , para 5, which is as follows:
5. In support of the appeal, Mr. Shushil Kumar, the learned Senior Counsel submitted that without compelling reasons the judgment of the trial Court has been set aside. The prosecution has suppressed the genesis of the dispute and its version lacks credibility. The doctor had found that the injuries sustained were lacerated and not incised. Though the witnesses have stated the weapon of assault to be a “kudal,” there is no mention in the evidence of P.W. 4 about the side of the weapon which was allegedly used. The post-mortem report and the medical evidence completely rule out the oral evidence about the use of “kudal.” Strong reliance was placed on decisions of this Court in Hallu v. State of M.P. 1974 SCC (Cri) 462 : 1974 Cri LJ 1385 and Balaka Singh v. State of Punjab 1975 SCC (Cri) 601 : 1975 Cri LJ 1734 importing specific statement about the side of weapon of assault. It is submitted that the prosecution had a duty to obtain clarification. Significantly, the bloodstained clothes were sent for medical examination and not bloodstained weapons. The contradictions highlighted by the trial Court related to the ocular evidence and the medical evidence and not contradictions between the evidence of different witnesses. Therefore, the High Court committed an error in holding that the trial Court’s judgment was vulnerable.
6 to 8…
9. So far as the injuries found on the deceased and the side of the weapon used are concerned, it is to be noted that the injuries were not in the middle of the body but on the side. From the evidence, it is clear that those were possible if assaults were made when the deceased was moving. So far as the decisions of this Court in Hallu (supra) and Balaka Singh (supra) are concerned, the position was succinctly stated in Gurmej Singh v. State of Punjab 1991 SCC (Cri) 992 : 1992 Cri LJ 293. It was observed in paragraph 8 as follows:
8. Counsel for the appellants next submitted that according to the prosecution appellant-Gian Singh was armed with a gandasi and he is alleged to have given a blow therewith on the chest of the deceased. Ordinarily a gandasi-blow would cause an incised wound whereas the deceased had an abrasion 5″ x 1″ on the chest caused by a hard and blunt substance. According to counsel normally when a witness deposes to the use of a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant. In support of this contention counsel invited our attention to two decisions, namely, Hallu v. State of M.P. (supra) and Nachhattar Singh v. State of Punjab 1976 SCC (Cri) 182 : 1976 Cri LJ 1883. In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the gandasi. We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the gandasi. If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight. But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used. The observations in the aforesaid two judgments do not lay down to the contrary. In fact in the first-mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference. Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of P.W. 1 Dr. Malhotra on the question whether such an abrasion was possible by a gandasi-blow. According to him, as held by this Court in Kartarey v. State of U.P. 1975 SCC (Cri) 803 : 1976 Cri LJ 13 and Ishwar Singh v. State of U.P. 1976 SCC (Cri) 629 : 1976 Cri LJ 1883 it was the duty of the prosecution to elicit the opinion of the medical man in this behalf. P.W. 1 clearly stated in the course of his examination-in-chief that Injuries 2, 3 and 4 were caused by a blunt weapon. It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the gandasi. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness. In fact the Presiding Officer should himself have elicited the opinion. However, in this case it should not make much difference because the evidence of P.Ws. 2 and 3 is acceptable and is corroborated by the First Information Report as well as P.W. 4. If the medical witness had also so opined it would have lent further corrobo-ration. But, the omission to elicit his opinion cannot render the direct testimony of P.Ws 2 and 3 doubtful or weak. We. therefore, do not see any merit in this submission. In fact if we turn to the cross-examination of P.W. 1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected.”
(underlined for emphasis).
10. Above being the position, the plea of the learned Counsel for the appellant that it was the duty of the prosecution witnesses to clarify as to which side of the weapon was used is without substance when the direct evidence sufficiently establishes the assaults. In any event, P.W. 6 has stated that the blunt side of the weapon was used.”
37. In the case in hand, it cannot be ruled out that the spear was not hit from the pointed tip but it was used from the blunt side. The evidence of the prosecution is credible and cogent regarding the incident. Considering the manner in which the incident took place, the injuries caused in quick succession and the witnesses could not have counted the assaults, the presence of the respondents-accused was also not doubtful at the spot. Keeping in view of this fact, the finding recorded by the trial Court is not correct.
38. Learned Counsel for the respondents-accused further contended that the sample of blood-stained soil taken from the place of incident was not sent for chemical examination. Perusal of the evidence reveals that the blood-stained soil was taken into possession by the I.O. and it was not sent for chemical examination. The said soil was produced before the trial Court. We are of the view that non-examination of the bloodstained soil by the chemical examiner does not affect the prosecution version. The incident as we have pointed out earlier is admitted to the parties and the place of incident is clearly established by the credible and cogent evidence. These omissions and discrepancies in the investigation have to be viewed in the light of the facts and circumstances of each case. There may be cases where such omission or discrepancies may be proved fatal to the prosecution case whereas in the other cases it may not have same effect. Omission which has been pointed out is insignificant. The consequence of such omission in the investigation is not necessary lead to discredit the main prosecution case if the prosecution evidence inspires confidence and circumstances lead to such a conclusion and the prosecution story rings true. No doubt in view of event it would be necessary to evaluate as to what extent such faulty investigation or omission on certain facts relating thereto, would cause damage to the prosecution case as a whole. Such infirmities which crept in this investigation is due to the careless investigation of the matter. It is well settled position of law that the testimony of the witnesses if found credible and cogent the defect on the part of the Investigating Officer cannot be taken into account. This is a remissness on the part of the Investigating Officer, which does not help the appellant. Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the Investigating Officer if the investigation designedly defective. (Reliance placed in Dhanaj Singh alias Shera v. State of Punjab ; Chhotu v. State of Maharashtra 1997 Cri LJ 4394 (SC) and Karnel Singh v. State of M.P. 1995 Cri LJ 4173. The ocular testimony of the witnesses are credible and cogent. In view of the forgoing discussion we are of the view that the contention of the learned Counsel for the respondents-accused has no force. It has further held by the Hon’ble Supreme Court in Rotash v. State of Rajasthan 2007 AIR SCW 44 : 2007 Cri LJ 758 that:
32. The investigation was not fool-proof but then defective investigation would not lead to total rejection of the prosecution case.
33. In Visveswaran v. State this has held:
Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
In view of the foregoing discussion, we are of the view that the contentions of the learned Counsel for the respondents-accused have no force.
39. Learned A.G.A. for the appellant-State contended that the learned trial Court has erred in holding that the prosecution could not establish guilt of the respondents-accused beyond reasonable doubt. Learned Counsel for the respondents-accused refuted the contention and contended that the incident took place on 6-6-1980 at about 6 a.m. and the report was lodged on the same day at about 7.50 a.m. But, the report was received in the Court on 29-6-1980. Thus, the FIR was received by the Magistrate very late. The compliance of Section 157, Cr. P.C. had not been done by the I.O. immediately after the incident. It was further contended that if there would have been a prompt report the report should have been received by the Magistrate on the same day or on the next day. Perusal of the record reveals that all the accused persons named in the FIR were arrested on the same day and the I.O. sought the remand of all the accused persons for a period w.e.f. 7-6-1980 to 20-6-1980. The application for remand is on record. The request of remand further reveals that a carbon copy of the FIR and the Tehreer report had also been sent to the concerned Magistrate along with the remand application. The Magistrate after perusal of the FIR and other relevant papers allowed the request of the I.O. and granted the remand of the respondents-accused. Merely because of sending the original chick report by delay did not give any benefit to the accused persons. The entire record was sent along with the remand application on 7-6-1980. The learned Counsel for the defence has further contended that the FIR had been received by the Magistrate on 20-12-1999. It has been held by the Hon’ble Apex Court in Munshi Prasad v. State of Bihar 2002 (Cri) SCC 175 : 2001 Cri LJ 4708, para 14 that:
13. In support of the appeal, a further submission has been made pertaining to the First Information Report (FIR). On this score the appellants contended that delayed receipt of FIR in the Court of the Chief Judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligatory on the officer-in-charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice – if the Court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, merely delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The decision of this Court in Shiv Ram v. State of U.P. , lends support to the observation as above.
40. The Hon’ble Apex Court has also held in State of Karnataka v. Moin Patel as below:
16. The matter can be viewed from another angle also. It also already been found by us that the prosecution case that the FIR was promptly lodged at or about 1.30 a.m. and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of the above facts the mere delay in dispatch of the FIR- and for that matter in receipt thereof by the Magistrate – would not make the prosecution case suspect for as has been pointed out by a three-Judge Bench of this Court in Pala Singh v. State of Punjab, the relevant provision contained in Section 157, Cr. P.C. regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under Section 159, Cr. P.C. and, therefore, if in a given case it is found that FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned may be, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.
41. In view of the above, the substantial compliance of Section 157, Cr.P.C. had been done by the i.o. immediately after the incident. Learned Counsel for the respondents-accused could not show that as to what prejudice has been caused to the respondents-accused by delay in dispatching the FIR. The prompt FIR, prompt arrests of the accused and prompt seeking the remand of the accused persons along with case-diary and copy of the FIR reveals that the delayed receipt of FIR was not fatal.
42. To attract the provisions of Section 34, I.P.C. two postulates are indispensable. (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. To attract the applicability of Section 34, I.P.C. the prosecution is under obligation to establish that there existed a common intention which requires a pre-arranged plan, because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention. There is no gainsaying that a common intention presupposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such pre-concert or pre-planning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. In the case in hand, the prosecution has led cogent and reliable evidence of eye-witnesses of the incident that the respondent/accused came to the field of deceased and assaulted him to death in furtherance of the common intention. It is further proved that the respondents-accused in furtherance of the common intention caused the grievous injury to Smt. Kartar Kaur P.W. 4.
43. In view of the foregoing discussion, we are of the view that the trial Court’s conclusions were patently based on surmises and conjectures and were contrary to the evidence. There was no basis for the trial Court to conclude that the prosecution has not established the guilt beyond any reasonable doubt against the respondents-accused. The trial Court has erred in acquitting the respondents-accused. Thus, the respondent/accused are liable to be convicted. The prosecution has also proved that the accused persons also assaulted Smt. Kartar Kaur P.W. 4 with common intention due to which she sustained grievous injury on her person. As such, the respondents-accused are liable to be convicted under Sections 302/34, I.P.C. for the murder of the de-ceased-Subba Singh and under Sections 326/34, I.P.C. for causing grievous hurt to Smt. Kartar Kaur P.W. 4. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death would be awarded only in the rarest of rare cases. A number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organised crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. In the instant case, the weapons used by the respondents are ordinarily to be found in the house of any farmer or agriculturist in that area. The offence was obviously not committed for lust of power or otherwise or with a view to grab any property nor in pursuance of any organised criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. The respondents-accused had no previous criminal record. This case does not fall in the category of the rarest of the rare cases.
44. As per the verification report of the CJM concerned, the respondent No. 3-Pyara Singh has died. Hence, the appeal against the respondent No. 3-Pyara Singh stands abated.
45. Thus, the appeal is allowed and the judgment and order dated 31-7-1989 passed by IInd Additional Sessions Judge, Nainital in ST. No. 152/1980 acquitting the respon-dents-accused under Section 302 r/w Section 34, I.P.C. and under Section 326 r/w Section 34, I.P.C. is set aside. The respondents-accused i.e. Sohan Singh and Arjun Singh are convicted under Sections 326/34, I.P.C. and 302/34, I.P.C. They are sentenced to undergo imprisonment for life under Sections 302/34, I.P.C. and a further sentence of five years under Sections 326/34, I.P.C. Both the sentences shall run concurrently. They shall be taken into custody by the Court below to make them to serve the aforesaid sentences.
46. Let the lower Court record be sent back to the court concerned for compliance. compliance report be submitted within there months.
